The common law of England, developed by the judges, was developed in accordance with basic moral principles. These moral principles, basically the moral code of Christianity, are mirrored in the other great religions. There is a core set of rules of conduct which is common to all the great religions. The principles which formed the basis of the English common law include honesty, keeping promises, the pursuit of truth, responsibility, duty, fairness in interpersonal relations, concern for one's neighbours, respect for property, loyalty and duty to one's spouse and children, the work ethic and keeping one's word. The emphasis is upon the duty and responsibility of the individual. No society can function efficiently or humanely and no civilisation can endure without these values. They are values for individuals — not for society.
Common law liability is based on fault and individual responsibility. It is axiomatic that a person should not be disadvantaged or punished except for fault — intentional, reckless or negligent wrongdoing (strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the traditional legal order. The Magna Carta contains one of its early manifestations, but the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community.
Law based on individual moral responsibility provided a limited role for law. A significant part of modern law is not based on fault. Laws based on equality, fairness and social justice considerations have led to a massive expansion of law. Individual responsibility has been overlaid by social responsibility.
The modern reform tradition has undermined the original values and institutions. It is not suggested that the old values and institutions should remain inviolate and unchanged. Modern conditions require change and action by legislation is essential. The problem with modern reform is that it has not taken account of the basic underlying values and institutions of the tradition and particularly the important principle of the common law that law must be based on fault. The individual is not responsible under the common law in any way unless there was some act of wrongdoing — that wrongdoing could be based on negligence, recklessness, intentionally committed harm or reasonably foreseeable harm (strict liability). Modern legislation has departed from that basic principle and there has been a big explosion of law. I do not have time to illustrate and explain this proposition.
Other important dimensions in the common law are:
i. Law attempted to prevent men from doing harm and did not try to make man good
ii. Law emphasised duties not rights.
The emphasis in the traditional law defined above is upon the duty and responsibility of the individual. The law regulates conduct which is morally blameworthy. No society can function efficiently or humanely and no civilisation can endure without these values.
The failure to assume responsibility for one's actions and the tendency to look to government for everything leads to big government and the undermining of traditional morality.
Traditional morality is inestimably important. Without it, all kinds of injustices and oppressions against individual persons are sanctioned; not the distorted and imaginary oppressions of Marxist theory, but the real oppressions which arise when men forget the golden rule: love your neighbour as yourself.
The abandonment of traditional morality leads to expropriation of private property, heavy taxation, theft, waste, compulsory association, totalitarian thought control, sexual exploitation, homeless children, fraud and dishonesty, disloyalty to family, ever increasing government power and control, envy, indiscipline, laziness, individual irresponsibility, indecency, rudeness, impoliteness, social engineering and genocide, not to mention impiety.
The values of a society derive from its spiritual and moral foundations. When those foundations are destroyed a vacuum exists and people can be manipulated according to the ideology and power ambitions of ruling elites.
I do not support the introduction of religion and theology into politics, law and constitutionalism. Any attempt to include religious and theological concepts into constitutionalism, law and politics is likely to be divisive and will raise a host of practical problems. A completely different dimension is the need to infuse basic principles of morality common to all religions into the lives of the actors in constitutionalism, law and politics.
The dominance and corrupting influence of the established church in politics, caused reactions in western philosophical thought and action. The battle to remove established religion out of state and civil society has unfortunately also lead to a decline in standards of morality. The core problem of western society (indeed organised society all over the world) is the decline of morality. The root cause of so many problems surely is the decline of morality at all levels in society. Unless this is arrested, decline at all levels will continue. Yet academics and the politicians in the western world while analysing human problems scarcely focus on the moral roots of so many problems.
It is something I wonder about often when I sit at academic conferences or read learned writings. Academics talk and write about rights and reforms without any reference to the moral roots of so many problems. Proposals for reform are common in politics, education and media. But can there be worthwhile reform without, for example, honesty? This is an issue which the reformers ignore.